Hemp CBD Across State Lines: Washington

The Agriculture Improvement Act of 2018 (2018 Farm Bill) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (CSA) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (USDA) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.

This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp. Our attorneys track these developments in real-time on behalf of multiple clients, and we provide those clients with a 50-state matrix showing how states regulate hemp and hemp products. Today we turn to Washington State.

The Washington State Department of Agriculture (WSDA) regulates the production of hemp under the 2018 Farm Bill. The state’s hemp plan was approved by the USDA in January 2020. We wrote about Washington’s hemp plan when it was proposed back in November 2019 so if you’d like to really dig into it, you can do that here. Overall, Washington’s hemp cultivation regulations are fairly standard though there are a few notable and unique provisions. For one, the WSDA requires that hemp producers ensure that Washington-grown hemp is accompanied by a certification form showing that it contains no more than legally allowed amount of total THC and by a copy of the producer’s license. For hemp plant material that was grown elsewhere, the WSDA requires a bill of lading or other documentation demonstrating that the hemp was legally imported into Washington and is legally present in the state.

Another interesting quirk of Washington’s hemp law is contained in RCW 15.140.040 (5), which reads as follows:

The whole hemp plant may be used as food. The [WSDA] shall regulate the processing of hemp for food products, that are allowable under federal law, in the same manner as other food processing under chapters 15.130 [(Washington’s Food Safety and Security Act)] and 69.07 RCW [(Washington Food Processing Act)] and may adopt rules as necessary to properly regulate the processing of hemp for food products including, but not limited to, establishing standards for creating hemp extracts used for food.

This means that under Washington law, any part of the hemp plant may be used as food and the WSDA may regulate the processing of hemp into extracts like Hemp CBD.  But these hemp products have to be “allowable under federal law” which makes things complicated given that the FDA has consistently stated that it is illegal to sell Hemp CBD as a food or dietary supplement. The WSDA’s hemp FAQs take this legal framework into account in answering “What CBD Products From Hemp Are Allowed?”

The federal Food and Drug Administration (FDA) and WSDA do not permit CBD to be added to food and beverages or sold as a dietary supplement. The FDA is the overall authority for CBD products derived from Hemp. CBD products like tinctures, lotions, and topicals are allowed. Please view the WSDA Food Safety notice at the following link: https://agr.wa.gov/departments/food-safety/food-safety/hemp-cbd-in-food 

This all means that currently Washington does not allow for the sale of Hemp CBD in food or dietary supplements. But that could change as soon as the FDA’s position changes, given that Washington law allows the WSDA to regulate the processing of hemp into food and extracts like Hemp CBD.

Turning to other Hemp CBD products, Washington law explicitly permits the sale of “cannabis health and beauty aids” which are “product[s] containing parts of the cannabis plant” that are intended for topical use, cannot pass the blood-brain barrier, contain less than 0.3% THC and are not intended for ingestion. RCW 69.50.575. This covers Hemp CBD cosmetics. Hemp CBD vapor products, on the other hand, are explicitly prohibited. RCW 70.234.030.

Washington was one of the first two states to legalize recreational marijuana, making it a very early adapter. The state has not taken a similarly bold approach to Hemp CBD as the sale of any Hemp CBD product other than cosmetics comes with significant legal risk.

We’ll continue to monitor all things hemp in Washington and elsewhere. For previous coverage in this series, check out the links below:

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